Kripa Dayal vs State

S.I. Jafri, J.—Kripa Dayal has filed this revision against his conviction u/s 324 IPC and sentence of one year''s R.I. recorded by the Courts below.

The applicant along with three others was prosecuted in the Court of Chief Judicial Magistrate Sitapur in Case No. 1623 of 1985, State v. Kripa Dayal and Ors. Who convicted him and three others Under Sections 324/34 IPC. All the four accused were sentenced to undergo R. I. for one year. The accused including the applicant preferred an appeal before the learned Sessions Judge against the judgment and order passed by the Chief Judicial Magistrate. Sri. R.K. Agarwal, Sessions Judge, Sitapur partly allowed the appeal (Criminal Appeal No. 17 of 1987 Kripa Dayal v. State of U.P. and while acquitting the three co-accused, he had confirmed the conviction of the applicant u/s 324 IPC and sentence of one year''s R. I. recorded by the trial court.

The case of the prosecution was that the accused had nursed on ill- will against Chet Ram, the maternal uncle of Brahma Din injured-complainant and as a result thereof at about 4 P.M. on 1-11-1983, all the four accused including the applicant had encircled the complainant Brahma Din while he was proceeding towards his field situate on the northern side of the tube-well''s boring of Chet Ram. It is alleged that Kripa Dayal applicant was at that time armed with a country made pistol and his remaining companions were armed with Lathies. It is also alleged that Kripa Dayal applicant fired at Brahma Din causing injuries on his left hand. On the alarm raised by the injured, Babu Ram PW 2, Midai PW 3, Sultan PW 6 and others were attracted to the scene of occurrence whereupon the accused bolted away. After the occurrence, a written report was lodged by Brahma Din on the same day at 5.40 P.M. at P.S. Sadarpur. On the basis of the aforesaid report, a Chik report was prepared by the Head Constable and a case u/s 324 IPC was registered in the General Diary of the Police Station. Injured Brahma Din was examined by Dr. Raghav Ram PW 5 who found the following injury on his person:

Multiple fire-arm wounds of entry in an area of 11 cm x 7 cm on back and inner side of left fore-arm in middle part, size of wounds varying from 0.2 cm to 0.3 cm in diameter.

After conclusion of the investigation, the police submitted charge-sheet against all the four accused.

The accused pleaded not guilty to the charge and stated that they were falsely implicated in the case on account of enmity.

During trial, the prosecution examined Brahma Din PW 1, Babu Ram PW 2, Midai Lal PW 3 Sultan PW 6 and Dr. Raghav Ram PW 5 and others in support of its case.

Brahma Din complainant has dwelt upon the prosecution case in detail. He stated that while at about 4 P.M. on 1-11-1983 he was on his way to his field situate on the northern side of the tube well''s boring of Chet Ram, he was surrounded by all the four accused and the applicant Kripa Dayal had fired his pistol at him resulting in gun-shot injuries in his hand. The testimony of Brahma Din was corroborated by the Medical Report Ex. Ka 4 which was proved by Dr. Raghav Ram PW 5. His testimony is further corroborated by evidence of Babu Ram PW 2 and Sultan PW 6. However, Midai Lal PW 3 did not support the case of the prosecution and he was treated hostile.

I have gone through the evidence of Brahma Din complainant carefully and nothing material has been fished out by the learned Counsel for the applicant in order to discredit his testimony. The statements of Babu Ram PW 2 and Sultan PW 6 also do not suffer from any infirmity.'' Their evidence also inspires confidence. The Chief Judical Magistrate relying upon the evidence of these witnesses had convicted and sentenced the applicant alongwith co-accused Prithipal, Pyare Lal and Sri. Ram as stated above but it appears that the learned Sessions Judge had given benefit of doubt to accused Prithi Pal, Pyare Lal and Sri. Ram who were alleged to have been armed with lathies, as a measure of abundant caution. It may be noted that Prithi Pal, Pyare Lal and Sri. Ram were not ascribed the role of causing injury to the complainant Brahma Din. Under the circumstances, the acquittal of Prithi Pal, Pyare Lal and Sri. Ram accused has not at all adversely affected the prosecution case against the applicant Kripa Dayal.

Having heard Sri. S.C.. Bajpai, learned Counsel for the applicant and also the learned Counsel for the State, I am satisfied that the applicant Kripa Dayal was rightly convicted and sentenced by the Court below.

The learned Counsel for the applicant contended that the injury, sustained by the complainant Brahma Din is not on vital part of the body and the same is simple and of a minor nature. Moreover, it was further submitted by him that the applicant is not a previous convict and he is also an employee in the Cane Department of the State of U.P. It was also pointed out by him that the occurrence had taken place more than four years back and taking into account the good antecedents of the applicant, he may not be sent back to Jail in order to serve out the remaining sentence and instead, he may be placed on probation for keeping good behavior.

Considering the submissions advanced by the learned Counsel for the parties in their entirety, I affirm the conviction of the applicant u/s 324 IPC but instead of sending him to Jail to undergo the sentence, I deem it fit and proper to place the applicant Kripa Dayal on probation of good conduct for a period of two years from the date of the execution of the bond.

In the result, the revision is partly allowed. The conviction recorded against the applicant u/s 324 IPC is affirmed but, instead of sending him to Jail, the applicant is placed on probation for good conduct for a period of two years from the date of the execution of the bond u/s 4 of Probation of Offenders Act, 1958. During the period of probation the sentence of imprisonment awarded by the court below shall remain suspended. In case during the said period, the applicant does not conduct himself properly, he shall be called upon to serve out the remaining sentence as imposed by the lower appellate court. The applicant is allowed three month''s time to furnish two sureties of Rs. 1000/-each and a personal bond in the like amount in order to be of good conduct and behaviour for a period of two years to the satisfaction of Chief Judicial Magistrate, Sitapur.

I am also conscious of the fact that complainant Brahma Din sustained injuries, although they were of a minor nature and on non-vital part of his body. However, in order to meet the ends of justice, it would be in the fairness of things to award compensation to the victim Brahma Din for the agony that he had undergone at the hands of the applicant. I, therefore, direct that applicant Kripa Dayal shall pay Rs. 1000/- to the complainant Brahma Din as compensation u/s 5 of the Probation of Offenders Act, 1958 within three months from the date of the receipt of this order in the court of Chief Judicial Magistrate Sitapur. The aforesaid amount shall be deposited in the court of Chief Judicial Magistrate Sitapur by the applicant within three months from date of the receipt of the order in the court of Chief Judicial Magistrate, Sitapur. The Chief Judicial Magistrate shall personally see that the amount of compensation awarded by this Court is given to the complainant Brahma Din and in the event of the death of the complainant Brahma Din, the amount of compensation shall go to his heirs legal representatives. In case of default of payment of the aforesaid fine, within the stipulated period of three months by the applicant, the Chief Judicial Magistrate shall be at liberty to adopt coercive measures, such as, attaching the salary of the applicant or his moveable property etc.

Lastly, the learned Counsel for the applicant submitted that there is every likelihood that the conviction in the instant case may be made the basis by the Authorities in the Cane Department of which the applicant is an employee, to embark upon disciplinary proceedings against the applicant in order to terminate his service. Here it is worthy of consideration that the object of the Probation of Offenders Act 1958 is to afford an opportunity to the convict having regard to the circumstances of the case, the nature of the offence and the character and antecedents of the offender to reform himself in order to turn over a new leaf during the period of probation. Thus, the offender is provided an opportunity to become a useful member of the society, the object of the Act is wholly reformative, facilitating the offender''s reformation and rehabilitation. If during probation, the offender is divested of his means of livelihood such as, termination of his services as is apprehended in the instant case, such action will, then make it difficult for the offender to keep peace and to reform and rehabilitate himself in order to be a law abiding and Useful citizen and the net result would, then, be that the offender may not be able to reap the benefits extended to him under the Act.

Under the circumstances as shown above, I feel that the Conviction of an offender to whom the benefits of the Probation Act have been extended by courts, should not be used in a Way disabling him to be of good conduct and behavior during the period of probation otherwise the very purpose of the Act may be frustrated. Moreover, the offence u/s 324 IPC also does not fall within the domain of moral turpitude. I, therefore, deem it proper to direct the hierarchy of the Cane Department of the U.P. Government not to embark upon any disciplinary proceedings against the applicant which may result in the termination of his services in the light of the observations made above.